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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-222
In the Matter of
) Acct. No. 201132100025
AT&T
) FRN 0005193701
)
ORDER
Adopted: March 2, 2011 Released: March 9, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and AT&T. The Consent Decree
terminates an investigation initiated by the Bureau against AT&T for
possible violations of section 4.9 of the Commission's rules regarding
the reporting of network outages.
2. The Bureau and AT&T have negotiated the terms of a Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether AT&T possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Rules, the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Jackie Flemming, Assistant Vice-President, External
Affairs/Regulatory, AT&T Services, Inc., and to William A. Brown,
General Attorney, AT&T Services, Inc., at 1120 20th Street, N.W.,
Suite 1000, Washington, D.C., 20038.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-222
In the Matter of
) Acct. No. 201132100025
AT&T
) FRN 0005193701
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and AT&T,
by their respective authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
investigation into whether AT&T violated Part 4 of the Commission's rules
("Rules"), including section 4.9.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
(a) "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "AT&T" means the subsidiaries of AT&T Inc. that are subject to section
4.9 of the Rules and their successors and assigns, including any such
companies that may be created or acquired by AT&T during the term of
this Consent Decree, subject to a 90-day grace period for newly
acquired companies that begins with the date on which the acquisition
is finalized.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
(e) "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 8.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" means the investigation commenced by the Bureau's July
18, 2007 letter of inquiry into AT&T's compliance with Part 4 of the
Rules.
(h) "Parties" means AT&T and the Bureau, each of which is a "Party."
(i) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Under section 4.9 of the Rules, wireless and wireline service
providers such as AT&T must report to the Commission certain outages
affecting the service provider's network as defined by the Rules. Upon
discovery of such an outage, a service provider is required to file an
electronic Notification within 120 minutes, an Initial Communications
Outage Report within 72 hours, and a Final Communications Outage
Report within 30 days (collectively referred to as "Outage Reports").
3. On July 18, 2007, the Bureau issued a letter of inquiry ("LOI") to
AT&T. The LOI directed AT&T, among other things, to submit a sworn
written response to a series of questions relating to AT&T's
compliance with the Commission's network outage reporting rules. AT&T
responded to the LOI on August 24, 2007. On March 28, 2008 the Bureau
issued a follow-up LOI to AT&T. AT&T responded to the follow-up LOI on
May 1, 2008. The Bureau issued additional LOIs on June 2, 2008 and
June 17, 2008. AT&T responded to these on June 23, 2008 and July 8,
2008, respectively. AT&T and the Bureau entered into a Tolling
Agreement on December 4, 2007 (the "Tolling Agreement"), which was
extended by the Parties through and including March 15, 2011.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
5. Jurisdiction. AT&T agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. Upon
the Effective Date, the Adopting Order and this Consent Decree shall
have the same force and effect as any other order of the Commission.
Any violation of the Adopting Order or of the terms of this Consent
Decree shall constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights and remedies attendant
to the enforcement of a Commission order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree, and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, AT&T agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that, in the absence of
new material evidence, the Bureau will not use the facts developed in
this Investigation through the Effective Date, or the existence of
this Consent Decree, to institute, on its own motion, any new
proceeding, formal or informal, or take any action on its own motion
against AT&T concerning the matters that were the subject of the
Investigation. The Bureau also agrees that, in the absence of new
material evidence, it will not use the facts developed in this
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal
or informal, or take any action on its own motion against AT&T with
respect to AT&T's basic qualifications, including its character
qualifications, to be a Commission licensee or authorized common
carrier or hold Commission authorizations.
8. Compliance Plan. In response to the Bureau's Investigation, AT&T
represents that it initiated certain remedial measures and, for
purposes of settling the matters herein, agrees to maintain a
Compliance Plan intended to ensure future compliance with the Act, the
Rules, and the Commission's Orders. The Compliance Plan will include,
at a minimum, the following components:
a. Compliance Officer. AT&T shall designate a Compliance Officer within
thirty (30) days of the Effective Date. The Compliance Officer shall
be responsible for administering the Compliance Plan and shall be the
senior corporate manager whose business unit is most directly
responsible for reporting network outages to the FCC.
b. Remedial Measures. AT&T certifies that, since the onset of this
Investigation, it has implemented changes to improve the accuracy and
timeliness of its outage reporting process. Specifically, AT&T has
consolidated the responsibilities for reporting most wireline and
wireless service outages into a single operations center and
implemented new report tracking tools that employ automated
notifications, as well as escalations and reminders. AT&T has also
required its 911 vendors to inform it of service outages that impact
AT&T. Additionally, AT&T has implemented a monthly review with key
stakeholders to drive further improvements in the reporting process.
AT&T agrees to maintain these measures for the duration of the
Compliance Plan and shall review and revise these measures as
appropriate, including in the event of any changes in the network
outage reporting rules.
c. Training. AT&T certifies that, as a result of this Investigation, it
has implemented a network outage reporting training program. AT&T
shall maintain for the duration of this Compliance Plan a Training
Program as detailed below.
i. AT&T's Compliance Training Program shall address, at a minimum,
the Rules governing the reporting of network outages, the
information and calculations necessary to determine whether an
outage is reportable under the Rules, and the time periods during
which notifications and reports of reportable outages must be
submitted to the Commission. AT&T's Compliance Training Program
shall also address the methods and procedures adopted by AT&T to
identify and report those network outages that meet the
Commission's reporting criteria. The Training Program shall also
include information on the potential internal and regulatory
consequences of failing to comply with the Commission's outage
reporting requirements and/or AT&T's methods and procedures.
ii. Within sixty (60) days of the Effective Date, AT&T shall ensure
that training and compliance materials regarding the
Commission's network outage reporting requirements are provided
to all of its employees who are responsible for gathering and/or
analyzing information regarding AT&T's network outages, entering
that information into any AT&T database and/or record that forms
the basis of AT&T's reporting of network outages to the
Commission, or compiling and/or submitting AT&T's outage reports
to the Commission, as well as any managers overseeing such
employees. This training shall be provided on an annual basis.
Additionally, AT&T shall update the Training Program as
necessary and appropriate, and in the event of changes and/or
additions to section 4.9 of the Rules, shall update the Training
Program within fifteen (15) days after the effective date of any
such change or addition. AT&T will also train new and reassigned
employees responsible for these activities within thirty (30)
days of their assuming these responsibilities.
d. Outage Reporting: Within sixty (60) days after the Effective Date,
AT&T shall report the date and time each outage filed in the FCC's
Network Outage Reporting System (NORS) was discovered to be
reportable. AT&T shall include such information in either the
Background Description or the Duration Explanation field in the exact
same manner in each Outage Report Filed. The format shall be:
Discovery Date/Time: mm/dd/yyyy hh:mm:ss.
e. Compliance Report: AT&T shall file Compliance Reports with the
Commission covering the reporting periods six (6) months after the
Effective Date, twelve (12) months after the Effective Date, and
twenty-four (24) months after the Effective Date.
i. Each Compliance Report shall include assertions by AT&T that it:
1. has established operating procedures intended to ensure
compliance with the terms and conditions of this Consent Decree
and with section 4.9 of the Rules, together with an accompanying
statement explaining the basis for the assertion;
2. has been utilizing these procedures for the entire term of the
Compliance Plan;
3. has disclosed any known instances of non-compliance with this
Compliance Plan discovered during the reporting period;
4. has taken steps to identify any late-filed outage reports; and
5. has addressed any instances of late-filed outage reports and
taken steps to remedy the cause of the late filings.
ii. Each Compliance Report must be supported by the declaration of the
Compliance Officer as an agent of and on behalf of AT&T with
personal knowledge of the representations provided in the report,
verifying the truth and accuracy of the information. The declaration
must comply with section 1.16 and be subscribed to as true under
penalty of perjury in substantially the same form set forth therein.
iii. Any instance of non-compliance with the Compliance Plan disclosed
in the report shall provide:
1. a detailed explanation of the non-compliance;
2. the steps AT&T has taken to remedy the non-compliance and
ensure future compliance; and
3. the schedule on which the proposed remedial actions will be
taken.
f. Filing. All Compliance Reports shall be submitted within fifteen (15)
days after the end of the reporting period to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to Kevin M. Pittman, at Kevin.Pittman@fcc.gov
and JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
g. Progress Assessment. Beginning on the Effective Date, AT&T shall, at
the request of the Bureau, meet with the Bureau once each 60-day
period during the term of the Compliance Plan to discuss AT&T's
adherence to the Compliance Plan and its performance under the Part 4
Rules. AT&T agrees to provide the Bureau with information the Bureau
requests concerning these topics.
h. Termination Date. Unless stated otherwise, the provisions of this
paragraph shall remain in effect for twenty-four (24) months from the
Effective Date.
9. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against AT&T or its affiliates for alleged violations of the Act, or
for any other type of alleged misconduct, regardless of when such
misconduct took place. The Commission's adjudication of any such
complaint will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by AT&T with the Act, the Rules, or
Commission Orders, except for alleged violations covered by this
Consent Decree.
10. Voluntary Contribution. AT&T agrees that it will make a voluntary
contribution to the United States Treasury, in the amount of one
million eight hundred thousand dollars ($1,800,000). The contribution
will be made within thirty (30) days after the Effective Date. The
Parties acknowledge that this voluntary payment does not constitute a
forfeiture under the Act or FCC rules. The payment must be made by
check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the Account Number
and FRN referenced in the caption to the Adopting Order. Payment by
check or money order may be mailed to the Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account number in block number 23A (call
sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). AT&T will also send electronic notification to
JoAnn.Lucanik@fcc.gov and Kevin.Pittman@fcc.gov on the date that
payment is made.
11. Waivers. AT&T waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Bureau issues an Adopting Order
adopting this Consent Decree without change, addition, modification,
or deletion. AT&T shall retain the right to challenge the Commission's
interpretation of the Consent Decree or any terms contained herein. If
either Party (or the United States on behalf of the Commission) brings
a judicial action to enforce the terms of the Adopting Order, neither
AT&T nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and AT&T shall waive any statutory right
to a trial de novo. AT&T hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. S: 504
and 47 C.F.R. S: 1.1501 et seq., relating to the matters addressed in
this Consent Decree.
12. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
13. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which AT&T does not expressly
consent), that provision will be superseded by such Commission Rule or
Order.
14. Successors and Assigns. AT&T agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. The Parties further agree that this
Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the requirements of the Act or the
Rules and Orders.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
18. Authorized Representatives. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree. Each person signing this Consent Decree on behalf of a Party
hereby represents that he or she is fully authorized by the Party to
execute this Consent Decree and to bind the Party to its terms and
conditions.
19. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
For the Enforcement Bureau:
____________________________
P. Michele Ellison
Chief, Enforcement Bureau
____________________________
Date
AT&T:
By: ____________________________
Paul Mancini
Senior VP & Assistant General Counsel
AT&T Services, Inc.
1120 20th Street, N.W.
Suite 1000
Washington, DC 20036
____________________________
Date
47 C.F.R. S: 4.9.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S:S: 4.1 et seq.
47 C.F.R. S: 4.9.
Id.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jacquelyne
Flemming, Executive Director Counsel, AT&T Services, Inc. (July 18, 2007).
Letter from Peter H. Jacoby , General Counsel, AT&T Services, Inc., to
Kathy Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (August 24, 2007).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Peter H. Jacoby,
Senior Attorney, AT&T Services, Inc. (March 28, 2008).
Letter from Christopher M. Heimann, General Attorney, AT&T Services, Inc.,
to Kathy Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (May 1, 2008).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Christopher M.
Heimann, General Attorney, AT&T Services, Inc. (June 2, 2008).
Email from Thomas Fitz-Gibbon, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jackie Flemming,
Executive Director, AT&T Services, Inc. (June 17, 2008).
Letter from William A. Brown, General Attorney, AT&T Services, Inc., to
Kathy Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission. (June 23, 2008).
Letter from William A. Brown, General Attorney, AT&T Services, Inc., to
Kathy Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (July 8, 2008)
Tolling Agreement, File No. EB-07-SE-222, executed by and between Kathryn
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, for the Enforcement Bureau; and Gary L.
Phillips, General Attorney and Associate General Counsel, for AT&T Inc.
(December 4, 2007).
Tolling Agreement Extension, File No. EB-07-SE-222, executed by and
between Ricardo M. Durham, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, for the Enforcement
Bureau; and William A. Brown, General Attorney, for AT&T Inc. (January 12,
2011).
Under this provision, AT&T will not be required to provide outage
reporting compliance training to employees whose responsibilities do not
include gathering, analyzing, or entering data regarding AT&T's network
outages or compiling AT&T's outage reports, managing such employees, or
whose involvement in AT&T's outage reporting activities is limited to
performing job functions that are not specific to outage reporting under
the Commission's Rules.
Federal Communications Commission DA 11-402
2
Federal Communications Commission DA 11-402